BVA9508918
DOCKET NO. 93-12 731 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in Winston-Salem,
North Carolina
THE ISSUE
Entitlement to service connection for residuals of injuries to
both eyes, and left eye pterygium, based on new and material
evidence.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
Anthony D. Dokurno, Associate Counsel
INTRODUCTION
The veteran performed active naval service from April 1943 to
April 1946.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from a July 1992 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO), which denied service
connection, based on new and material evidence, for residuals of
injuries to both eyes, and left eye pterygium.
REMAND
The threshold consideration is whether the veteran's claim is
well-grounded. Under 38 U.S.C.A. § 5107 (West 1991), a claimant
has the burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim is well-
grounded. If the claimant meets this burden, the VA is obligated
to assist in developing facts pertinent to the claim. A well-
grounded claim is one that is plausible, that is, meritorious on
its own or capable of substantiation. Murphy v. Derwinski,
1 Vet.App. 78, 81 (1990). If one whose claim was previously
denied presents "new and material" evidence, the case is reopened
and the Board must evaluate the merits of the claim in light of
all the evidence, both new and old. 38 U.S.C.A. § 5108; Ivey v.
Derwinski, 2 Vet.App. 320, 322 (1992). While evidence submitted
by a veteran may be insufficient to reopen the claim, it may
nevertheless be sufficient to give rise to the statutory duty to
assist in the claim's factual development. Id. After an
examination of the facts of record and the information provided
by the veteran and his representative, the Board is of the
opinion that it is at least plausible that pertinent information
from the vessel upon which the veteran was deployed at the time
of his alleged injury, and the unnamed hospital ship to which he
was transferred for treatment, may yet exist. It also appears
plausible that this evidence will be new and material evidence
sufficient to reopen the veteran's claim.
The veteran's January 1943 Report of Physical Examination and
Induction indicates that he had no eye abnormalities, as did a
March 1943 physical examination report. However, the April 1946
Report of Physical Examination, conducted in conjunction with the
veteran's separation processing, noted that the veteran had
"early pterygium, left eye [not considered disqualifying]."
In his July 1983 Application for Compensation or Pension the
veteran contended that he was injured in 1946, while aboard USS
PC-1588. In his March 1993 substantive appeal, he indicated that
PC-1588 was part of a convoy enroute from San Francisco,
California to Iwo Jima at the time of the incident. He also
reported that shortly thereafter he was evacuated to the hospital
ship in the convoy for treatment, but he did not name the ship.
It appears from the record that the RO contacted that National
Personnel Records
Center in St. Louis, Missouri and secured those of the veteran's
personnel and service medical records that were in its
possession. It does not appear that the veteran's assistance was
sought in attempting to secure archival information regarding the
ship upon which he had deployed or the hospital ship to which he
was purportedly evacuated. The veteran's service representative
has requested the return of this claim to the RO, so that an
attempt may be made to secure service medical records, sick bay
reports, and ship deck logs, with the veteran's assistance. The
Board agrees that this would be prudent. Further, in view of the
notation of the presence of a pterygium at the time of the
separation examination which was not noted at the time of entry
into service, the Board concludes that a current VA examination
is warranted.
Accordingly, in light of the foregoing and the Board's duty
under 38 U.S.C.A. § 5107(a) to assist the veteran in the
development of facts pertinent to his claim, the case is
REMANDED to the RO for the following actions:
1. The RO should ask the veteran to
provide the name of the hospital ship to
which he was evacuated for treatment
following his onboard injury, and the date
of its occurrence.
2. With the information the veteran
provides, the RO should then contact the
two following agencies for ship deck logs,
medical logs, and sick bay reports from
USS PC-1588 and the pertinent hospital
ship identified by the veteran, for the
time of the purported injury:
National Archives
Suitland Reference Branch
(NNRR), Attn: Mr. Richard
Boylan
Washington, DC 20409-2042
Naval Historical Center
Ship's History Branch
Attn: Mr. John Riley
9 Washington Navy Yard
901 M St., SE
Washington, DC 20374-5060
3. The RO should request the veteran to
provide a comprehensive statement
regarding all medical treatment he
received post-service for his eye
disorder(s). The veteran should be
advised to supply the necessary signed
authorizations for the release of this
medical information. He should also be
informed that his cooperation is vitally
important to a resolution of his claim and
that his failure to cooperate may have
adverse consequences. After the veteran
has submitted written authorizations for
the release of information, the RO should
take appropriate action to secure copies
of these records.
4. Thereafter, the RO should arrange for
a VA eye examination of the appellant, if
feasible. The purpose of the examination
is to determine whether: (a) a pterygium,
or identifiable residuals of the claim eye
injuries in service is currently present;
and (b), if so, whether, either of this
conditions is productive of identifiable
disability.
In light of any additional evidence obtained, the RO should
readjudicate the issue listed on the title page and issue a
supplemental statement of the case if the benefit sought on
appeal is not granted to the veteran's satisfaction. The
veteran and his representative should be provided an opportunity
to respond. Thereafter, the case should be returned to the
Board for further consideration, if otherwise warranted.
By this REMAND, the Board intimates no opinion regarding any
final outcome. The veteran is not required to perform any action
until he is notified by the RO.
RICHARD B. FRANK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).